United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
employees work more than forty hours in a week, they expect
overtime pay. Under the Fair Labor Standards Act
(“FLSA”), employees working these hours are
entitled to time-and-a-half, unless the Act exempts them.
Employees at Nature's Expressions Landscaping, Inc.
(“NEL”) claim they have worked more than forty
hours per week. They are not exempt from the FLSA. And now
they want their overtime pay. So they have filed a collective
action in this Court asking for their money.
argues it owes nothing. Some Plaintiffs, according to NEL,
never worked for the company. Others work under contracts
specifically spelling out overtime and straight time pay. In
fact, NEL claims the company compensates some employees above
what the FLSA requires. These employees, NEL argues, do not
understand how their own wages are calculated. And finally
NEL argues that some employees trying to join this action
simply filed too late. So NEL now asks for Summary Judgment
or, in the alternative, Decertification of four groups of
plaintiffs. Plaintiffs have responded [DE 43], and Defendant
filed a reply [DE 45] making the matter ripe for review.
reasons stated herein, Defendant's Motion for Partial
Summary Judgment is GRANTED IN PART, DENIED IN PART,
and DENIED IN PART AS MOOT. Defendant's motion
for Decertification is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas Adams, Adam Allnut, Frankie Anderson, Steven Atwood,
Charles Cook, John Heska, and Ron Stewart filed this action
on March 30, 2016 seeking unpaid overtime wages under the
FLSA. [DE 1]. Plaintiffs worked for NEL, a landscape
architecture firm that “creates and constructs outdoor
living spaces for clients throughout central Kentucky.”
[DE 1-1 at p. 7-8, ¶17]. NEL pays employees a set rate
per day. [Id. at p. 8, ¶18]. Plaintiffs allege
that this compensation scheme violates the FLSA because it
does not account for overtime hours. [Id. at p.
Plaintiffs describe it, NEL assigns each employee a daily
wage based on his position and duties. [Id. at p.
8-9, ¶20]. Each employee is required to work a certain
number of hours per day, which is divided into “quarter
days.” [Id. at p. 9, ¶22]. NEL tracks the
number of hours worked by each employee, and then rounds that
number to the nearest quarter day. [Id.]. NEL pays
the employee the sum equal to the employee's agreed upon
day rate, prorated by quarter days worked. [Id.].
For example, NEL might require an employee to work ten hours
per day and pay that employee $160 per day, based on the ten
hours of work. [Id. at p. 10, ¶23]. But on any
given day, if that employee works only 7.5 hours, his $160
per day would be prorated to three-fourths of the total daily
rate. [Id.]. Plaintiffs claim NEL uses this method
for all work, even if employees work more than 40 hours in a
week. [Id. at p. 12, ¶26].
simply, Plaintiffs claim NEL is not paying time-and-a-half
for overtime. Plaintiffs have suspected as much since early
2016, when Ron Stewart and Steven Atwood filed administrative
complaints with the Kentucky Labor Cabinet
(“KLC”) seeking unpaid overtime wages.
[Id. at p. 15, ¶36]. The KLC began
investigating NEL's compensation practices, and even
visited NEL premises. [Id.]. Although Stewart and
Atwood later withdrew their complaints, the investigation
remains pending, but its status is unknown. [DE 1-1 at p. 15;
time after filing with the KLC, Stewart and Atwood, along
with the other named Plaintiffs, filed this action in
Jessamine Circuit Court seeking overtime wages under the
FLSA. [DE 1-1]. Plaintiffs also filed retaliation claims
under the FLSA and state-law claims under the Kentucky Work
and Hour Act (“KWHA”). [Id.]. NEL
promptly removed the case to this Court on the basis of
federal question and supplemental jurisdiction. [DE 1].
the Defendant filed its Answer, the Plaintiffs moved pursuant
29 U.S.C. § 216(b) to conditionally certify this case as
a collective action. [DE 14]. Under that provision of the
FLSA, similarly situated plaintiffs may bring their cases
together as a collective. 29 U.S.C. § 216(b).
Court granted Plaintiffs' motion in a November 1, 2016
Memorandum Opinion and Order. [DE 26]. The Order approved
Plaintiffs' proposed notice and opt-in consent forms.
These forms were sent to the “FLSA Notice Group,
” which included “all individuals currently or
formerly employed by NEL who, within the three-year period
preceding the date of this Court's certification Order,
were compensated under the ‘day-rate' scheme, as
that term is described in Plaintiffs' Complaint, and who
worked hours in excess of forty (40) during any week
throughout the course of their employment.” [DE 22 at
p. 10]. This group had ninety days to fill out the paperwork
and join the class. [Id. at p. 11]. All opt-in
consent forms would be “deemed to have been filed with
the Court the date that they are stamped as received.”
[Id.]. The deadline was set for February 12, 2017.
[DE 28-1]. Since that Order issued, many current or former
NEL employees have completed and submitted opt-in forms. [DE
27; 28; 29; 30; 31; 32].
argues that several opt-in Plaintiffs either do not meet the
criteria to join this collective action or simply do not have
a case. [DE 39]. Defendant's motion addresses only opt-in
Plaintiffs and not the original Plaintiffs already
conditionally certified. [DE 26]. Defendant groups these
opt-in Plaintiffs into four categories: (1) persons who never
worked for Defendant NEL; (2) persons who opted in to the
lawsuit after the expiration of the opt-in period; (3)
persons who never worked more than 40 hours in any given week
for NEL; and (4) person whose employment agreements state
NEL's policy of straight time and overtime pay. [DE 39;
Court will discuss each group of Plaintiffs and the
parties' arguments in turn.
STANDARD OF REVIEW
Judgment is appropriate when no genuine dispute as to any
material fact exists and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). To prevail on summary
judgment, the moving party must show “that there is an
absence of evidence to support the nonmoving party's
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). A genuine issue of material fact exists only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Thus,
the Court considers “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52.
considering a summary judgment motion, the Court must
construe the facts in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255. Once the
moving party has met its burden of production, the nonmoving
party must “go beyond the pleadings” through the
use of affidavits, depositions, answers to interrogatories
and admissions on file, and designate specific facts showing
that there is a genuine issue for trial. Celotex,
477 U.S. at 323-24. A mere scintilla of evidence is
insufficient; “there must be evidence on which the jury
could reasonably find for the [nonmovant].”
Anderson, 477 U.S. at 252.
FLSA authorizes collective actions by any one or more
employees for and on behalf of himself or themselves and
other employees similarly situated.” Monroe v. FTS
USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017)(quoting 29
U.S.C. § 216(b)). Similarly situated employees may
“opt-into” such suits by “signal[ing] in
writing their affirmative consent to participate in the
action.” Comer v. Wal-Mart Stores, Inc., 454
F.3d 544, 546 (6th Cir. 2006).
FLA does not define the term ‘similarly
situated.'” Tassy v. Lindsay Entm't Enter.
Inc., NO. 3:16-CV-00077-TBR, 2017 WL 938326 (W.D. Ky.
Mar. 9, 2017). But Courts in this circuit “typically
bifurcate certification of FLSA collective action
cases.” Monroe, 860 F.3d at 397. “At the
notice stage, conditional certification may be given along
with judicial authorization to notify similarly situated
employees of the action.” Id. Such
certification is “by no means final.”
Comer, 454 F.3d at 546-47. “The plaintiff must
show only that his position is similar, not identical, to the
positions held by the putative class members.”
Id. (internal quotations omitted). “[T]his
determination is made using a fairly lenient standard, and
typically results in conditional certification of a
representative class.” Id. (stating further
that “authorization of notice need only be based on a
modest factual showing”) (internal quotations omitted).
discovery has concluded, the district court - with more
information on which to base its decision and thus under a
more exacting standard - looks more closely at whether the
members of the class are similarly situated.”
Monroe, 860 F.3d at 397. The final-certification
decision depends upon “a variety of factors, including
the factual and employment settings of the individual
plaintiffs, the different defenses to which the plaintiffs
may be subject on an individual basis, [and] the degree of
fairness and procedural impact of certifying the action as a
collective action.” O'Brien v. Ed Donnelly
Enter., Inc., 575 F.3d 567, 584 (6th Cir. 2009)
(internal quotations omitted), overruled on other grounds
by Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016).
enacted the FLSA in 1938 with the goal of ‘protect[ing]
all covered workers from substandard wages and oppressive
working hours.'” Christopher v. SmithKline
Beecham Corp., 132 S.Ct. 2156, 2162 (2012) (quoting
Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 739 (1981)); see also 29 U.S.C. §
202(a). Overtime pay makes up a critical aspect of the FLSA.
29 U.S.C. §207(a). This “obligates employers to
compensate employees for hours in excess of 40 hours per week
at a rate of 1 ½ times the employees' regular
wages.” Christopher, 132 S.Ct. at 2162.
Employees can enforce this requirement through a collective
action, which authorizes employees to sue on their own behalf
and for all similarly situated persons. 29 U.S.C. §
Group One: Employee Who Never Worked for NEL
named Dimitri Roskolov ever worked for NEL. [[DE 39 at p. 4].
Plaintiffs' counsel admits as much. [DE 43 at p. 4].
Indeed, Roskolov could not have worked at NEL because he does
not exist. [DE 39 at p. 4; 43 at p. 4]. Yet, Plaintiffs'
counsel listed a “Dimitri Roskolov” as an opt-in
Plaintiff to this lawsuit. [DE 27-2]. Defendant claims that
because the parties agree that a Roskolov never worked for
NEL, no genuine issue of material fact exists as to his
claims. [DE 39].
counsel attributes the mix up to an illegible signature and
an unfortunately named e-mail address. [DE 43 at p. 4].
William “Chad” Austin is the real person who
signed the consent form on November 16, 2016. [Id.].
When Plaintiffs' counsel received the form, the form did
not include a printed name. [Id.]. The signature was
illegible. [Id.]. But the e-mail address provided
included the name “Dimitri Roskolov.”
[Id.]. Plaintiffs' counsel assumed the
sender's name was, in fact, Dimitri Roskolov. It was not.
the Court were inclined to grant Defendant's Motion,
doing so would have no effect on Austin's legitimate
claim. And allowing Austin to join this collective action
does not prejudice NEL since Austin could file a new lawsuit
himself. Plaintiffs did not engage in any tactical
maneuvering to NEL's disadvantage. And Austin - the real
party in interest - returned a timely and proper consent
form. The Court sees no reason to punish Austin for a mistake
that has since been corrected.
Motion for Summary Judgment as to the claims of Dimitri
Roskolov are DENEID. Plaintiffs will be
permitted to substitute William ...